Jackson v. Virginia

PETITIONER:Jackson
RESPONDENT:Virginia
LOCATION:US Department of State

DOCKET NO.: 78-5283
DECIDED BY: Burger Court (1975-1981)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 443 US 307 (1979)
ARGUED: Mar 21, 1979
DECIDED: Jun 27, 1979

ADVOCATES:
Carolyn J. Colville – for petitioner, pro hac vice, by special leave of Court
Marshall Coleman – for respondents

Facts of the case

Question

Audio Transcription for Oral Argument – March 21, 1979 in Jackson v. Virginia

Warren E. Burger:

We’ll hear arguments next in Jackson against Virginia.

Mrs. Colville, I think you may proceed when you’re ready now.

Carolyn J. Colville:

Thank you, Your Honor.

Mr. Chief Justice, and may it please the Court.

The issue before the Court today is whether a federal district court should issue a writ of habeas corpus when there is insufficient evidence in the state court record to convince a rational trier of fact of guilt beyond a reasonable doubt.

A statement of the relevant proceedings is as follows.

The petitioner, James A. Jackson, who was tried and convicted of first-degree murder in the Circuit Court of Chesterfield County, he was sentenced to 30 years in prison.

Briefly, the evidence indicated that he had shot the deceased, Mrs. Mary Cole twice, that several shots were fired at the scene.

That he engaged in target practice that day.

However, there was an extensive evidence indicating he consumed a large amount of alcohol, and shortly before the death of Mrs. Cole, the two of them had drank two-fifths of whiskey, a fifth of some other alcoholic beverage, it was not divulged in the record, and an undetermined amount of beer.

He admitted to the shooting in the statement made to the police but indicated it was in self-defense.

He then unsuccessfully appealed this case to the Virginia Supreme Court.

He thereupon filed a pro se petition for a writ of habeas corpus to the United States District Court for the Eastern District of Virginia.

In which he made numerous allegations, including an allegation that his conviction for first-degree murder was unsupported by evidence of premeditation.

The District Court judge thereupon searched the record and determined that he could find no evidence of premeditation to be found.

Warren E. Burger:

Now, how did this district judge come to be addressing this subject?

Carolyn J. Colville:

Mr. Jackson alleged in his petition that his evidence — that his conviction was not supported by evidence of premeditation.

Warren E. Burger:

It wasn’t — this wasn’t the first time the case had been before a court.

The case wasn’t initiated in the federal court.

Carolyn J. Colville:

No, it is initiated in the Circuit Court of Chesterfield County, Virginia.

Warren E. Burger:

Yes.

Carolyn J. Colville:

He then an unsuccessfully appeal in the case of Virginia Supreme Court.

Warren E. Burger:

What was the federal court doing with it?

What brought the federal court end the case?

Carolyn J. Colville:

He was alleging a deprivation of rights.

Warren E. Burger:

Well, by what kind of a procedure was he in federal court?

Carolyn J. Colville:

He filed petition for writ of habeas corpus.

Warren E. Burger:

For a writ of habeas corpus.

Carolyn J. Colville:

Right.

Warren E. Burger:

Yes.

Carolyn J. Colville:

And in the petition —

Warren E. Burger:

I have the impression from your earlier remarks that the case was being tried by a federal court.

Carolyn J. Colville:

No, no.

The District Court judge —

Warren E. Burger:

There’s federal difference, isn’t there?

Carolyn J. Colville:

Yes, yes there is Your Honor.

The District Court judge searched the state court record, and determined that he could not find evidence of premeditation.

He then dismissed the other allegations for failure to exhaust the court remedies.

The State of Virginia thereupon filed a timely notice of appeal to the United States Court of Appeals for the Fourth Circuit.

The Fourth Circuit in a per curium opinion reversed the findings of the District Court judge and held that it could find some evidence of premeditation and need not search the record any further then just say — need not search the record in any further to see if a rational trier of fact could’ve found guilt beyond the reasonable doubt, whereupon, we filed petition for writ of certiorari to this Court.

Both the District Court and the Federal Court of Appeals applied Virginia law, whereupon one may be so intoxicated as to be incapable of deliberation.

In addition, both courts applied the holding of the 1960 case of Thompson versus City of Louisville, which held that it was a violation of due process to convict and punish a person without some evidence of guilt.

It is our contention that it is also a violation of due process to convict and punish a person when no rational trier of fact could’ve found guilt beyond the reasonable doubt.

Harry A. Blackmun:

Do you think that’s the situation here on this record?

Carolyn J. Colville:

Yes, I do Your Honor.

I don’t think that a rational trier could’ve found guilt beyond the reasonable doubt.

Harry A. Blackmun:

I take it you will expand on that in due course on your comment?

Carolyn J. Colville:

Yes, Your Honor.

Thurgood Marshall:

Could you find him guilty of manslaughter?

Carolyn J. Colville:

I think it’s possible that they could’ve found him guilty of manslaughter.

Thurgood Marshall:

But doesn’t that take it out from under Thompson?

Carolyn J. Colville:

Excuse me?

Thurgood Marshall:

Thompson, they said, you couldn’t debate him under anything.

Carolyn J. Colville:

I think the —

Thurgood Marshall:

This was a question of degree.

Carolyn J. Colville:

Certainly it is a question of degree.

We personally have no —

Thurgood Marshall:

They have no difference in Thompson and Louisville.

Carolyn J. Colville:

Well I think the holdings of this Court after Thompson in at least four years after about 1974, indicated that there has to be some evidence of every element of the offense.

We’re indicating that there is no evidence of premeditation.

Thurgood Marshall:

Well do you think — do you think he should go free?

Carolyn J. Colville:

No, Your Honor.

The respondents have addressed the issue of what can be done even if this Court found that there was insufficient evidence.

I think the common belief is that he could not be retried for first-degree murder due to the double jeopardy cause of the Constitution.

However, we would agree that he could either be sent back to the state courts for re-sentencing for second degree or for a retrial, because the only issue has been premeditation, a necessary element of first-degree murder not second degree.

Thurgood Marshall:

They renewed Thompson v. Louisville to do that.

Carolyn J. Colville:

To send it back to the state courts?

Thurgood Marshall:

For re-sentence?

Carolyn J. Colville:

No, Your Honor.

Potter Stewart:

You’re relying on the Winship case, is that it?

Carolyn J. Colville:

Yes, Your Honor.

Potter Stewart:

And the question, I suppose, is whether the Winship case is a constitutional matter beyond — requires that there be proof beyond the reasonable doubt in order to supply —

Carolyn J. Colville:

Yes, Your Honor.

Potter Stewart:

— a conviction that is for in a state court, or only that the jury be instructed that they must find guilt beyond the reasonable doubt.

That’s the real question, isn’t it?

Carolyn J. Colville:

Yes, Your Honor.

Our contention —

Potter Stewart:

If the jury was so instructed in this case, wasn’t it?

Carolyn J. Colville:

Yes, well —

Potter Stewart:

And maybe, arguably that’s all that Winship requires.

Carolyn J. Colville:

Well, Your Honor first of all, there was not a jury in this case.

It was tried by a judge.

Potter Stewart:

Well then the — presumably that the —

Carolyn J. Colville:

Certainly.

Potter Stewart:

— trier of fact followed that state —

Carolyn J. Colville:

Your Honor, it’s our contention that In re Winship, which held the due process clause as a Fourteenth Amendment requires that there be proof beyond the reasonable doubt.

Certainly, a jury instruction to the effect that the jury can not convict unless there is evidence beyond a reasonable doubt.

It is insufficient if in fact that jury has found guilt beyond the reasonable doubt.

William H. Rehnquist:

Mrs. Colville, the facts of Winship, were that the trial judge stated that he could find these particular defendant’s guilty by a preponderance of the evidence, but he couldn’t bring himself to find him guilty beyond a reasonable doubt.

Potter Stewart:

That’s right.

Carolyn J. Colville:

Certainly, yes, Your Honor.

I believe that this Court in addressing the issue with the juvenile indicated that in a juvenile proceeding that there can not be a conviction unless the tragedy has been proved beyond a reasonable doubt.

Now arguably, the federal courts have said that this is only a jury instruction.

However, at least four courts and at least two appeals courts in the context of a direct appeal have indicated that In re Winship requires that there would be proof beyond a reasonable doubt.

William H. Rehnquist:

How do you define — where do you get your definition of beyond a reasonable doubt from?

Carolyn J. Colville:

From In re Winship, which held that the Due Process Clause requires this in a criminal setting that there must be — that you could not convict a person unless there is proof beyond a reasonable doubt.

William H. Rehnquist:

I realize that, but I presume that if your argument were accepted by this Court, other courts would have to decide was there or was there not proof “beyond a reasonable doubt.”

Where do you get the definition of beyond a reasonable doubt?

Carolyn J. Colville:

Your Honor, that’s not an easy question.

I do think that —

William H. Rehnquist:

No, it isn’t.

Carolyn J. Colville:

— that in — that it has been a standard.

This has been generally accepted in both the federal and state courts for some time.

And I think —

Warren E. Burger:

For some time, it was accepted before the Constitution was developed, wasn’t it?

Carolyn J. Colville:

Yes, Your Honor.

It has been accepted for some time and I think that the courts are far more familiar with that standard than the “no evidence” standard of Thompson, which I submit is a far more difficult standard for our court to apply than beyond the reasonable doubt.

The courts are familiar with beyond a reasonable doubt.

They have not been with the “no evidence” rule of Thompson.

William H. Rehnquist:

But you are not prepared at least now to expand on simply the phrase “beyond a reasonable doubt” in offering guidances to how courts would analyze transcripts under situations like this?

Carolyn J. Colville:

Well certainly, well, Your Honor, if you mean by can we offer a definition?

William H. Rehnquist:

Yes.

Carolyn J. Colville:

No.

I think what we can offer is that if this Court adopted our position, does the Due Process Clause requires this?

And that it is something that is cognizable in a writ of habeas corpus.

What we would be suggesting is that the federal district court would give great deference to the findings of the state.

We’re not suggesting that there would be a great overruling on the state court cases.

What we’re saying is, if there’s conflict of testimony, the conflict should in most cases be favoring the state.

We’re not asking a second guessing.

We were asking if there is a clear issue of innocence here then the federal courts should intervene.

Carolyn J. Colville:

If it’s a —

Byron R. White:

Well how does the — in your state what is the reviewing standard?

Carolyn J. Colville:

Clearly erroneous, Your Honor.

Byron R. White:

Well when a convicted criminal appeals and says that the evidence was insufficient is this to prove guilt beyond a reasonable doubt, what standard does the appellate court use in your state?

Carolyn J. Colville:

In Virginia, there has not been a ruling indicating that In re Winship requires a proof beyond a reasonable doubt for this state to overrule the lower court findings.

What they’ve indicated is, if the finding is clearly erroneous, or in this particular case where there is — they simply indicated whether there has been any violations of the Constitution.

They did not elaborate on that for Virginia as of right now —

Byron R. White:

Well is this between in the ordinary criminal case in Virginia, no constitutional issues involved in it, they’re just conviction and a claim that the evidence was insufficient.

I suppose that the standard in Virginia, they instruct the jury that they must find beyond the reasonable doubt.

Carolyn J. Colville:

Yes, Your Honor.

Byron R. White:

And in reviewing the sufficiency of the evidence, what does the — you say the Virginia appellate court simply say is there —

Carolyn J. Colville:

If it’s clearly erroneous.

They have not —

Byron R. White:

What’s clearly erroneous?

Carolyn J. Colville:

The judgment of the lower court.

If you are —

Byron R. White:

The decision of the jury or what?

Carolyn J. Colville:

Yes.

Byron R. White:

Clearly erroneous that the —

Carolyn J. Colville:

Clearly erroneous, not proof beyond a reasonable doubt.

Warren E. Burger:

Is there a difference in the standard when a judge tries a case without a jury and when he tries it with a jury?

Carolyn J. Colville:

No, Your Honor, both would be under an obligation to find proof beyond a reasonable doubt.

In this particular case, we did have a judge and we have briefed the argument that it should not make any difference that a judge tried this case to rather than a jury.

I’ve — you know, honestly, I don’t think a judge will make an error as often as a jury.

Warren E. Burger:

Well are you suggesting that the federal court should apply a different standard from the highest court of the state in reviewing the conviction?

Carolyn J. Colville:

Your Honor, I think if Virginia has not accepted In re Winship as requiring as substantive right to proof —

Warren E. Burger:

What evidence do you base your statement on, Mrs. Colville, that Virginia has not accepted Winship?

Carolyn J. Colville:

Your Honor, they’ve —

Warren E. Burger:

Have they said so?

Carolyn J. Colville:

No, there’s simply has not been any holding where they have come down and said that we will overturn if the proof is insufficient, if the proof has not been beyond a reasonable doubt.

Potter Stewart:

Well, generally reviewing courts in states had very clearly do accept Winship, as you say Virginia has not.

That’s not the test in the appellate court, not whether or not the members of the appellate court are convinced of guilt beyond a reasonable doubt, but only whether they can say that a rational jury could’ve so found.

Carolyn J. Colville:

Certainly are.

Potter Stewart:

That’s the test.

Carolyn J. Colville:

Certainly, Your Honor.

Warren E. Burger:

Or a rational judge —

Carolyn J. Colville:

A rational trier.

Potter Stewart:

Fact finder.

Warren E. Burger:

— fact finder.

Carolyn J. Colville:

They’re saying that if someone had acted non-arbitrarily, they would have found the person not guilty.

Warren E. Burger:

What I want to get at, and I’m not clear on.

I’m still confused from the onset of your argument.

Carolyn J. Colville:

Okay.

Warren E. Burger:

Are you suggesting that there should be the same standard in the federal district court on the writ of habeas corpus as there would be in the state review?

Carolyn J. Colville:

I’m suggesting that if In re Winship which we feel establishes a substantive right of proof —

Warren E. Burger:

Well that’s a substantive for the trial in the state court, isn’t it?

Carolyn J. Colville:

— yes we would argue —

Warren E. Burger:

But does that continue — does that continue all the way through up in habeas corpus or 2255, 2254 if the state have a similar remedy?

Carolyn J. Colville:

Well Your Honor, we would argue that if the there is a several right to a proof then certainly yes.

That what we are arguing is that the federal district judge would look at the record.

Warren E. Burger:

But doesn’t this case come to us with a presumption that of regularity in the application of the federal constitution by the Virginia courts?

Carolyn J. Colville:

Yes, Your Honor, but we feel the mistake has been made.

And I think that the fact that the — both the federal district judge indicated that a mistake was made also.

That in fact the person should’ve been acquitted of the first-degree murder.

Potter Stewart:

Well, I thought your argument was that in federal habeas corpus, the wrong standard was applied, isn’t that it?

Carolyn J. Colville:

Our argument is at this point, the federal courts have seemingly not adopted the position of rational trier of fact as to habeas corpus and we refer —

Potter Stewart:

Well, was I wrong or right in understanding your argument to be that in this federal habeas corpus case, the District Court and the Court of Appeals were in error in applying the Thompson standard rather than the Winship standard?

Carolyn J. Colville:

Yes, Your Honor.

Potter Stewart:

Isn’t that your claim?

Carolyn J. Colville:

Yes, Your Honor.

Carolyn J. Colville:

Now, we’ve realized that initial years, this Court has been cutting back the scope of habeas corpus out of considerations of committee and federalism, particularly in cases where someone did not exhaust their state court remedies or someone didn’t object, or in particularly the Stone versus Powell which have put great emphasis on in our brief, where the exclusionary rule was involved which this Court held that frustrated the criminal process.

However, we would urge the court to particularly look at footnote 31 of that case where it was indicated that innocence is at the heart of habeas corpus cause what we are in fact arguing here that if the evidence was not sufficient to convince a rational trier of fact then that person was technically innocent of that offense.

Now, in that footnote, the Court discussed various states rights interest, including federalism, state autonomy fiction.

However, the clear implication of it is that innocence should be of overriding importance, and I think that’s basically what it boils down to here.

That innocence should be of importance to the writ of habeas corpus and that considerations of committee and federalism should of secondary importance.

John Paul Stevens:

Mrs. Colville, could I ask you a question about your theory as to why there — rather why the judgment is arbitrary of premeditation issue.

Is it because you think no rational judge could conclude that the defendant was not intoxicated, or is it because you argue that no rational judge could find that shooting twice and reloading the gun and shooting from only a half an inch away and so forth, could be evidence of premeditation?

Carolyn J. Colville:

My argument would be that he was indeed so intoxicated as to being capable of premeditation.

John Paul Stevens:

But no rational judge could believe he was not intoxicated.

Carolyn J. Colville:

That would be my argument and the Virginia law in mind maybe so be — by intoxicating beverages as to being capable of deliberation.

John Paul Stevens:

The Court of Appeals sought relied on the fact that the deputy sheriff obviously didn’t think he was totally intoxicated because he let him retain his weapon after he’d seen him with the weapon.

Carolyn J. Colville:

Your Honor, —

John Paul Stevens:

Is that some evidence of non — not being totally being intoxicated?

Carolyn J. Colville:

No, Your Honor we would not agree that that would be some evidence.

I think the record, the transcript, indicates that first of all the deputy sheriff knew the woman and I think there’s some doubt whether he knew the petitioner.

But apparently, he felt embarrassed by them coming up swaggering, bloodshot eyes and he wanted them out.

I think he also indicated that he wanted badly to get back inside the café.

He went outside with him but wanted to get back in the copy with his — the other police officers.

I think a reasonable rational explanation would be that he wanted to finish his dinner.

Thurgood Marshall:

But isn’t it a question in fact as to whether the man is drunk at night?

Carolyn J. Colville:

Yes, Your Honor, it would be a matter of fact, where were asked —

Thurgood Marshall:

And didn’t the judge decide that fact?

Carolyn J. Colville:

Yes, Your Honor, where —

Thurgood Marshall:

Well how can you attack that?

Carolyn J. Colville:

Well Your Honor, we’re arguing that a rational trier of fact could not have determined.

Thurgood Marshall:

Why?

Why is it irrational that this — to find that this man wasn’t too drunk?

Carolyn J. Colville:

Because I think the record —

Thurgood Marshall:

And what evidence do you have to show that he was not too drunk, or that he was too drunk?

Carolyn J. Colville:

I think the fact —

Thurgood Marshall:

All you have is that he was drunk.

John Paul Stevens:

And he’d consumed the fifth of whiskey, but you’re asking —

Thurgood Marshall:

But I know some people who get drunk over one drink of whiskey, and I know others who can drink two-fifths —

Carolyn J. Colville:

Well —

Thurgood Marshall:

— before getting drunk.

John Paul Stevens:

You said you’re asking for a constitutional rule that proof that the man has consumed at least a fifth of whiskey, demolishes the possibility that he could not be — could not have the record and ability to kill someone.

Carolyn J. Colville:

Well Your Honor, I’m not asking your constitutional rule as to that.

I am asking a constitutional rule that a rational trier could not have determined that.

I think first of all that the evidence — there was a great deal of evidence here that he had drunk the entire day.

John Paul Stevens:

Right.

Carolyn J. Colville:

The deputy sheriff that you referred to early, Mr. Justice Stevens —

Warren E. Burger:

Aren’t you really arguing that because the federal district judge on habeas corpus or that a federal district judge on habeas corpus, if that judge disagrees with the state court judge who tried out the fact issue, then the federal court determination prevails, isn’t it?

Carolyn J. Colville:

I would say it was the federal district court judge if he gives all the deference necessary to the state court judge.

If he just determines at that point that no rational trier of fact could’ve found guilt beyond a reasonable doubt or in this particular case, intoxication and premeditation then I would say yes definitely that the writ would have to be issued.

Warren E. Burger:

And then three other federal court judges on the Fourth Circuit can do an opposite conclusion from that of a district judge.

Carolyn J. Colville:

Well — well Your Honor, I think the Fourth Circuit in its opinion first of all held that it was under the obligation to follow Thompson versus City of Louisville and then went on to say that it did not feel that it needed to look at if there was sufficient evidence to convince a rational trial.

Potter Stewart:

Really, that’s what I thought your argument was Mrs. Colville, not what their result should be in this case, on the facts of this case, but rather that the federal courts and federal habeas corpus since the Winship case which came in after the Thompson case are obligated by the Constitution to apply a different test and a different rule than was applied here.

Carolyn J. Colville:

Certainly Your Honor, we’re arguing —

Potter Stewart:

Isn’t that your argument?

Carolyn J. Colville:

— we’re arguing that the Fourth Circuit and the District Court applied the wrong standard. They applied the 1960 standard, the Thompson.

We would urge that the 1970 case of In re Winship should’ve been the proper standard for the courts to have applied in this case.

And that we feel that the innocence of the person should be of overwriting importance in looking at other state considerations, but the overall, yes.

We’re asking the federal writ of habeas corpus be issued if no rational trier of fact could’ve found guilt beyond the reasonable doubt for that particular offense.

William H. Rehnquist:

Well counsel, you just said that the innocence is of overwriting importance.

I don’t know whether you mean to suggest that that is the only conceivable factor to be considered.

You’re familiar with our decision, Patterson against New York where we said punishment of those found guilty by a jury, for example, is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail?

Carolyn J. Colville:

Excuse me Your Honor, I didn’t catch that, I’m sorry.

William H. Rehnquist:

Well I’m just curious now whether you think that innocence is — the possibility of innocence is a —

Carolyn J. Colville:

Is the only determination?

William H. Rehnquist:

— the only factor, yes.

Carolyn J. Colville:

No, but I think when — I think in granting writ of habeas corpus, we have to look at if there is been a deprivation to due process rights then I think other principles can come into play.

This Court has, in the last few years, indicated comity and federalism in Francis versus Henderson, Estelle versus Williams, and Wainwright versus Sykes that these other things would come into play.

But that when innocence is at the heart of the argument, the innocence is at the heart of the right involved then that should be of overwriting importance.

William H. Rehnquist:

But Patterson against New York was a direct appeal here from the state court, so there wasn’t any problem of comity on federal habeas.

And it was in that case that the Court said that punishment of those found guilty by a jury is not forbidden merely because there is a remote possibility in some instances that an innocent person might go to jail.

Carolyn J. Colville:

Well Your Honor, I can just go back to my argument of Stone versus Powell, of innocence in the footnote indicating that innocence is at the heart of habeas corpus.

William H. Rehnquist:

Yes well but that was on exclusionary sense, in the sense that if you — if there was no — if the claim made had no bearing on innocence, perhaps it couldn’t be treated in federal habeas.

But there’s never been any suggestion that any federal constitutional claim couldn’t be treated on direct review here as was the case in Patterson.

Carolyn J. Colville:

Certainly, Your Honor.

I would just argue that in writ of habeas corpus, this should be the proper standard.

I’ll reserve the rest of my time for rebuttal.

Warren E. Burger:

Very well.

Mr. Attorney General.

Marshall Coleman:

Mr. Chief Justice, and if it may please the Court.

This case does present the narrow legal issue of whether or not the some evidence standard that was established in the Thompson against City of Louisville case should be overturned in favor of a rule of proof beyond a reasonable doubt upon a collateral attack by writ of habeas corpus of a Virginia or state judgment.

And it is our position that those two cases are thoroughly consistent one with the other, and that as the Chief Justice has suggested, the standard of proof beyond a reasonable doubt has been employed in the several states for time out of mind.

And in fact, is the standard in Virginia and upon review by the Virginia Supreme Court, the test is whether a rational juror could decide and hold that proof had been established beyond a reasonable doubt.

We have review by transcript already in Virginia.

When someone files a petition for writ to our Virginia Supreme Court, he is not entitled to a hearing, but he is entitled to a review of the record to determine on the question of sufficiency of the evidence whether that is shown in the transcript.

Potter Stewart:

But not — despite your practice since time in memorial in the State of Virginia, not until the Winship case was it squarely decided that the federal constitution required that a state prove a person guilty beyond a reasonable doubt before it could convict them, isn’t it?

Marshall Coleman:

My reading of Winship is that the Court was sitting in that case that as to a juvenile trial, the proof had to be beyond a reasonable doubt if the preponderance of the evidence was not sufficient, and that less there be any doubt it would say as a matter of constitutional law, that was the rule.

But I have cited some cases here that I think suggested that that was not a new rule, whether it was one that was applicable.

Potter Stewart:

Well certainly not a new rule in the common law, but I — it’s my understanding that not until the Winship case had it been squarely decided by this Court that it’s constitutional —

Marshall Coleman:

I think that’s right, it was constitutionalized at that point clearly.

Potter Stewart:

Right and since it was constitutionalized at that point and since it’s been the practice since time almost in memorial, a federal courts on federal habeas corpus to apply constitutional test to state criminal convictions.

Why shouldn’t the rule of Winship be the applicable test now that Winship’s been decided which came after Thompson?

Marshall Coleman:

Well I think for several reasons.

I think the reasons that have already been alluded to of the effective use of resources, federalism, comity, avoiding friction —

Potter Stewart:

Well on that basis we could just not consider First Amendment questions, for example.

Marshall Coleman:

Well that’s certainly correct.

Potter Stewart:

That will save some time.

Marshall Coleman:

It would save some time, but in this case you see there is never — the case is tried first in the state court then it’s taken on appeal.

Potter Stewart:

Yes.

Marshall Coleman:

Then it comes back to the federal courts.

Potter Stewart:

Yes.

Marshall Coleman:

And then the question there becomes —

Potter Stewart:

And that’s true on any federal habeas corpus.

Marshall Coleman:

It is, except —

Potter Stewart:

Because you have to exhaust your state remedies before you can even go into federal court.

Marshall Coleman:

That’s right, but with respect to sufficiency of the evidence first.

That is an objection that any defendant can make.

So that the resources of the court, if it has to go through and have another trial by transcript would be monumental and it would engage the resources of the federal courts to the extent that it would be using up the time of the courts that could better be focused to —

Potter Stewart:

Yes but if it’s a constitutional duty to do it, it’s a constitutional duty to do it.

Marshall Coleman:

Well I think the constitutional duty if —

Potter Stewart:

I mean that is the question, isn’t it?

Marshall Coleman:

The question is it seems to me —

Potter Stewart:

It’d be too bad if it’s going to add a lot of business to the federal courts, but if that’s their job, it’s their job.

Warren E. Burger:

Well is it not the question, Mr. Attorney General, whether after Winship the states in the trial of criminal cases are constitutionally obliged to find —

Marshall Coleman:

That’s precisely the point.

Warren E. Burger:

— the reasonable doubt standard, isn’t that all Winship decided?

Marshall Coleman:

That’s precisely the point that is made in the brief.

Warren E. Burger:

It had nothing to do directly with collateral attacks.

Marshall Coleman:

That’s exactly right.

Warren E. Burger:

Was there any state in the union if you know at the time of Winship that did not apply?

Marshall Coleman:

I don’t know of any.

Warren E. Burger:

The reasonable out rule?

Marshall Coleman:

But I do think that after Winship, in every case, the rule was is there proof beyond a reasonable doubt as a standard in the state court.

Now what the Louisville rule I think established was that the court was willing to look at the record to see if there was any evidence to support that.

But it seems to me that the Court could consider in this case that since there is an interest in cutting back on these cases and the rule of Stone against Powell is that if there has been an opportunity for a full and fair hearing in the state court that there is no need to redo that in the federal court and that —

William J. Brennan, Jr.:

Well may I ask Mr. Attorney General of course review was not sought of the decision of your Supreme Court in this case?

Warren E. Burger:

That’s right.

William J. Brennan, Jr.:

Suppose there had been a petition to review your Supreme Court on the ground that Winship had not been properly applied?

Now surely that’s a federal question which could’ve reviewed?

Marshall Coleman:

That’s right and —

William J. Brennan, Jr.:

And we might have disagreed with your Supreme Court and reversed this conviction?

Marshall Coleman:

That’s right.

William J. Brennan, Jr.:

And now your suggestion is that we ought — litigants ought to be limited to come in to us directly and review from state courts rather than go into federal habeas?

Marshall Coleman:

Well I’m making — I’m making that suggestion to the Court.

First —

William J. Brennan, Jr.:

Why, don’t we have enough to do up here?

Marshall Coleman:

I’m suggesting to the Court if they come up on direct review that’s sufficient to protection and check and supervision over what’s happening to peoples —

William J. Brennan, Jr.:

Oh now, you know what’s — you know something about the happenstance of certiorari grants, don’t you?

Marshall Coleman:

I do.

I realize that and I’m suggesting that habeas corpus could still exist for the purpose of determining whether there had been an opportunity for a full and fair hearing, but once there has been given that —

William J. Brennan, Jr.:

But as I understand your argument, perhaps I misunderstand it, you suggest we ought to foreclose habeas review in cases like this and limit the review if there’s to be any federal review to direct review by this Court of your higher state court?

Marshall Coleman:

I’m suggesting to the Court to consider that as a possibility.

We have urged in this case first of all that the Thompson rule should be maintained, we think that’s very important.

But in view of the cases that have occurred recently, the Wainwright case and Estelle and Francis and Stone against Powell that would certainly be consistent with our line.

William J. Brennan, Jr.:

That’s no secret to you, I didn’t agree with any of those.

Marshall Coleman:

I read that.

Your Honor, as I would say simply that in this case that could change —

Harry A. Blackmun:

Well surely Stone against Powell is different form this case, isn’t it?

Marshall Coleman:

Well in Stone —

Harry A. Blackmun:

Of course you adversary’s argument has in his substance that innocence is involved and is at the heart of federal habeas.

Marshall Coleman:

That was not true in Stone against Powell.

I think it is different but it seems to me that the principle makes sense across the board, because Stone against Powell is saying “if there’s an opportunity for a full and fair hearing, there needs to be an end” and has been said in one of the cases that if a thing could be done well once there’s no need to do it twice.

Harry A. Blackmun:

Of course we haven’t pursued Stone against Powell every time we’ve been asked to.

Marshall Coleman:

I understand that.

Potter Stewart:

Your argument would lead, I should think inexorably to the conclusion that if there has been a valid conviction in the state court, that’s the end of the matter.

There can never be habeas corpus.

Marshall Coleman:

Well as far as sufficiency of evidence is concerned.

Potter Stewart:

I mean that would’ve denied review in Thompson against Louisville.

Obviously the police court in Louisville there thought that there was proof beyond a reasonable doubt or it would not have convicted Thompson.

Marshall Coleman:

Well there’ve always be the opportunity for direct review, and there’ve always be I think Your Honor —

Potter Stewart:

I know but — that of course there’s opportunity for discretionary direct review, the petition for certiorari here.

But we’re talking here about federal habeas corpus and it seems to me that your argument leads ineluctably to the conclusion that federal habeas corpus is never available if there’s been a valid state court conviction.

Marshall Coleman:

Well I think it is available for the Court to determine —

Potter Stewart:

For what?

Marshall Coleman:

— the question of the opportunity of the full and fair hearing, I don’t think that’s been completely flushed out I don’t think we know exactly what the confines were of.

Potter Stewart:

But when there’s been a full and fair hearing that’s the end of the matter.

There’s no federal habeas corpus ever.

Marshall Coleman:

For sufficiency of the evidence.

Potter Stewart:

For anything that’s where your argument leads.

Marshall Coleman:

Well I think what the effect of habeas corpus would be is to see still if constitutional rights are being violated.

If there’s not in fact a full and fair —

Potter Stewart:

Well and would constitutional rights be violated if a state had convicted a person on evidence of a lesser standard than beyond a reasonable doubt under Winship?

Marshall Coleman:

I think that under Winship, the only test would be had that — has that standard of proof been applied in the case.

Potter Stewart:

Had they mouthed the right things to the jury, is that it?

Marshall Coleman:

But I think that there would be ways to look behind the substance — look to the substance if the appearance of justice did not conform with the substance about there.

Potter Stewart:

Well that’s just what this is about, isn’t it?

That’s what exactly what this case is about.

Marshall Coleman:

Well if it please the Court, I will settle for the adoption as I say in the brief of the Thompson rule, but I —

Thurgood Marshall:

Mr. Attorney General, let me give you an easy one Mr. Attorney General.

If this had been a jury trial with the finest of instructions on reasonable doubt etcetera, and the same record we have here, wouldn’t you be in a better position?

Marshall Coleman:

If there’d been a jury in this case?

Thurgood Marshall:

With the full instruction on reasonable doubt right out of Winship.

Marshall Coleman:

Well except that the law — you may be right about that.

Thurgood Marshall:

Wouldn’t you be have been — wouldn’t you be in better shape?

Marshall Coleman:

Well there couldn’t be argument about what standard they were supposed to apply but the law in Virginia is that the judge is supposed to apply the same standard that the trier of fact does.

Thurgood Marshall:

Well you don’t want to draw the line between those two?

Marshall Coleman:

Well I haven’t thought about that.

I think that as long as the standard —

Thurgood Marshall:

I’m just being helpful that’s all.

Marshall Coleman:

Well if it’s helpful I’ll adopt it.

Potter Stewart:

But what if, to go a little further with my brother Marshall’s suggestion and this had been a jury trial and there had been absolutely perfect instructions on the duty of a jury not to convict until it found guilt beyond a reasonable doubt and on the presumption of innocence and all the rest of it.

But that in fact the evidence was no stronger than it was in Thompson against Louisville and the Court of Appeals had the state appellant system erroneously, let’s assume, had held the instructions were fine and we think the evidence was sufficient under that standard.

Now is a federal district court absolutely foreclosed from examining it?

Marshall Coleman:

If you adopt the standard, I think that you’re in the same position that you’re in with Wainwright that you are cut off because of procedural default there.

Here you are cut off if you had an opportunity —

Potter Stewart:

No, there’s no procedural default at all.

There’d been pursuit of state remedies and —

Marshall Coleman:

I think you’re right, as long as there’s the ability to raise that question and get a full and fair hearing under those standards that’s the end of it.

Potter Stewart:

That’s the end of federal habeas corpus.

That’s what I thought you argued.

Marshall Coleman:

Now, my point on that Your Honor is simply that there is I think in this Court a greater sensitivity to the integrity and capacities of the state courts.

There’s a growing recognition that the state courts are well able to apply federal law, to administer their state criminal laws and that as long as they are doing that, that there’s no reason to retry cases, to duplicate effort and to expand the time between when someone is charged and when the case is over.

Potter Stewart:

Well that I argument I think leads to overruling Thompson against Louisville at least in so far as its applicability to collateral attack goes?

Marshall Coleman:

I think that’s right.

Potter Stewart:

Yes I think it’s right, isn’t it — it’s correct?

Marshall Coleman:

Yes, sir.

Potter Stewart:

Not that it’s — I don’t agree that it’s necessarily right.

Marshall Coleman:

Well obviously, in order to uphold the judgment of the Fourth Circuit.

It’s not necessary for the Court to go this far, and the chief thrust of my brief obviously is simply that the standard of Louisville against Thompson is still the correct application, except that the court wants to go further and break out and into a new area and say “As far as sufficiency as the evidence is concerned we’re satisfied the state courts can do it and do it well.”

And that’s been the experience in the past.

I think that the —

Potter Stewart:

Well that would be of an expansion of Stone against Powell, wouldn’t it?

Marshall Coleman:

It would.

It would be.

Potter Stewart:

I mean, but the Stone against Powell approach.

Thurgood Marshall:

Appropriate as it mentioned but —

Potter Stewart:

But a Stone against Powell approach.

Marshall Coleman:

It would be, certainly it would be.

Potter Stewart:

Through this kind of —

Marshall Coleman:

It’d be the application of the Stone against Powell doctrine into this case.

William J. Brennan, Jr.:

And to that extent I gather a pro tanto appeal by the court of the federal habeas corpus statute that Congress enacted —

Marshall Coleman:

You know, I think there’d still be something there for habeas.

William J. Brennan, Jr.:

I said a pro tanto.

Marshall Coleman:

Yes, sir.

Thurgood Marshall:

I believe —

Marshall Coleman:

Thank you, Your Honor.

Thurgood Marshall:

— a great amount of —

William J. Brennan, Jr.:

As I said —

Marshall Coleman:

Excuse me?

Thurgood Marshall:

— with the judge trial as compared with the jury trial.

I’ve seen instances where the federal district judge was a former state judge of the same state.

And where you have a judge trial without a jury trial, why can he do the same thing?

He’s a former state judge.

Marshall Coleman:

You’ve seen where the state judge is what?

I didn’t hear that part.

Thurgood Marshall:

Where the district judge is a former state judge.

Marshall Coleman:

Right, that’s right.

Thurgood Marshall:

And you ask him to pass on a judgment by a state judge in a trial without a jury, wouldn’t you give him some leeway?

Marshall Coleman:

Well it be true in people that had gone before a jury in a different manner —

Thurgood Marshall:

Yes.

Marshall Coleman:

— I suppose because you’d be cutting off, you’d be chilling somewhat, I suppose, their interest in taking the jury trial.

But I think that he would be just as capable.

The question that all of this raises in my mind is that who is to say what is a correct verdict?

A judge is — disagree on points that are very particularized and very slight in many cases, it’s been said by Justice Jackson that this Court is infallible because it’s final and it’s not final because it’s infallible.

There could be a different disposition if we had another level of appellate courts.

We have one judge in Chesterfield agreeing and thinking its proof beyond a reasonable doubt, and we have the District Court disagreeing that Fourth Circuit comes back and says “Well it takes another view, it’s okay.”

Marshall Coleman:

This Court might have a third or fourth view and then there might be, if it were tried in a different form.

So the point is, it seems to me that is a very important consideration not to be dismissed out of hand that the finality of these proceedings and the dignity and integrity of the state courts is of such a level now that the Court might consider departing and in fact contracting the expansion of habeas corpus.

This would give the Court, it seems to me, the ability to look very carefully at the fewer needles in the haystack, because in looking for all those needles sometimes I think it almost comes to the point is it worth finding and will we recognize when we see them?

Hundreds of pages of transcripts gone through, I think even for applying the some evidence standard, obviously it’s much easier but it’s still a tremendous job.

And so I would simply suggest to the Court that the state courts know how to administer the criminal laws —

Byron R. White:

You know what Mr. Attorney General, of course the federal habeas statue requires that all issues presented to federal habeas court be exhausted in the state courts first.

Marshall Coleman:

That’s right.

Byron R. White:

So that I suppose —

Marshall Coleman:

That’s limited to —

Byron R. White:

— the logical end of you position is that not only pro tanto repeal of the habeas corpus statute, but let’s just repeal it.

Marshall Coleman:

No I don’t want to that, Your Honor.

Byron R. White:

Well every question if — every question that comes to a federal habeas court shouldn’t be adjudicated there at all unless its — the state courts have already adjudicated it.

Marshall Coleman:

That’s right.

Byron R. White:

And there’s been completely exhaustion, so why shouldn’t that be the end of it?

Marshall Coleman:

Well I think that it’s there for cases where there is not proper respect and regard for the Federal Bill of Rights.

It seems to me that would be still —

Byron R. White:

Well I know, but are you suggesting that if all the — if all the plaintiff does in a — if all the petitioner does in the federal habeas corpus petition is to claim the state court made a mistake, I got a good hearing and they applied the right rules, the only thing is they came to the wrong result.

If that’s all he says should he be dismissed automatically?

Marshall Coleman:

Well I don’t think the result ought to have an effect now with the sufficiency of the evidence you might disagree with the result.

But there’s something to uphold it, if it’s arguable —

Byron R. White:

Well what about voluntariness of a confession?

Marshall Coleman:

Well I think that we’ve seen in Wainwright that the Court is willing to decide —

Byron R. White:

I know but say it’s been raised absolutely correctly and it’s been adjudicated.

The rules have all been followed in the in the state court, the only thing is the petitioner comes into federal habeas and saying the state court applied the right rules but it just misjudged the facts.

Marshall Coleman:

Well I confess that I’ve had trouble in figuring where this line ought to be drawn.

I know you’re much more capable of doing that than I am, but I think that with sufficiency of the evidence I can make a case, as I’ve tried to do today that that is one area where you had a sifting of the evidence.

You had a full canvas by the state procedures of the facts.

It’s going to the appellate review.

You’ve got judges that are experienced and practiced in these matters and that that could be the end of it consistent with the constitutional obligation.

William J. Brennan, Jr.:

Well I don’t understand Mr. Attorney General why if that can be the end of it, why couldn’t it be the end of review by this Court directly of the Virginia Supreme Court?

William J. Brennan, Jr.:

Why aren’t you arguing, we ought also be barred from the hearing?

Marshall Coleman:

Well I think that one reason is that that does give you check and as you say it seems sometimes to be in frequent that you get certiorari but you —

William J. Brennan, Jr.:

When you not concede — you concede it’s not the end of it to the extent of direct review by this —

Marshall Coleman:

It’s not and I think when you take weigh all these habeas corpus petitions you’re going to have an ability to render more suits.

William J. Brennan, Jr.:

And surely we’ll be swamped.

It will be impossible for us to handle it, obviously if the only review can be here.

Marshall Coleman:

Well I think in —

Warren E. Burger:

Where’s the —

William J. Brennan, Jr.:

Clearly so.

Warren E. Burger:

— you think the habeas — federal habeas statute was intended as a substitute or an additional layer of review in the conventional sense of review?

Marshall Coleman:

Well the habeas statute has of course been a changing thing over the years.

It seems to me that its idea was the vindication of fairness, of due process, the constitutional rights that all people in the country have.

And I think its expansion has grown, it was originally thought, I believe, to contest only matters of jurisdiction.

There’s a historical disagreement of —

Warren E. Burger:

The scope of the federal judge in Virginia then is not the same as the scope of the highest court in the State of Virginia.

Marshall Coleman:

Well I don’t think it is.

If you adopted Winship, it seems to me you would make the Supreme Court of Virginia and the Supreme Court in every state in the union absolutely inferior to every District Court.

William H. Rehnquist:

General Coleman, I don’t know whether you are in on the initial habeas proceedings or not, but I notice on page 25 of the appendix that the case not only has a civil number, it has a magistrate number.

Do you know whether this case was originally referred by the habeas judge to a magistrate?

Marshall Coleman:

No, it wasn’t.

Thurgood Marshall:

Mr. Attorney General, another easy one.

It’s true that according to this record, nobody who has made a decision in this case has shown any expertise in when the man is too drunk to know what he has done, up until now, isn’t that right?

Marshall Coleman:

Well I think that the —

Thurgood Marshall:

The trial judge could’ve been — couldn’t he?

Marshall Coleman:

Well the trial judge had to determine whether or not —

Thurgood Marshall:

Yes, I mean we don’t know how he knows when a man is too drunk.

Marshall Coleman:

Well but the same thing is true of the Supreme Court of Virginia.

Thurgood Marshall:

Yes, exactly.

Marshall Coleman:

And it would be true here.

Thurgood Marshall:

That’s what I’m saying, but what we’ll we do?

Thurgood Marshall:

What’ll we do?

Warren E. Burger:

If we had 12 lay jurors who passed on this issue, Mr. Attorney General, would we have any better information or knowledge about their capacity to make that judgment?

Marshall Coleman:

I don’t think we would.

We have no information about that process.

Thurgood Marshall:

You could have an instruction on it, couldn’t you, with the jury?

Marshall Coleman:

You could.

Thurgood Marshall:

Yes, I thought so.

Marshall Coleman:

Of course the judge also is supposed to know the law.

Warren E. Burger:

Instructs himself.

Thurgood Marshall:

I said but there’s nothing in the record to show it.

Marshall Coleman:

Well the point that I would —

Thurgood Marshall:

The composition is that he has trained as a Virginia judge to do the same thing a jury does, and he does it that way —

Marshall Coleman:

He does it and he’s familiar with the law.

The question of finality that is being raised here I think is an important one because in so many other issues a person is not set free if we find ten years later that somebody didn’t commit the crime because another person confesses to its remedy as executive clemency.

It seems to me that in a state trial when a person has gone through the trial and has appealed the matter and found guilty that that should be the end of it.

And so I would like to conclude by saying that all I would urge the Court to consider the application of Stone against Powell, drawing the line as I have suggested on these questions of sufficiency of the evidence on the theory that if a job can be done once well there’s no reason to do it twice.

If the Court does not feel that it wants to do — make that departure, clearly the rule of Thompson against City of Louisville is applicable and is not inconsistent with In re Winship.

Thank you.

Warren E. Burger:

Do you have anything further, Mrs. Colville?

Carolyn J. Colville:

Your Honor, just a very brief statement about what exactly we are seeking.

We are seeking that there be a standard in habeas corpus that no — if no rational trier of fact could’ve found guilt beyond a reasonable doubt, then the writ of habeas corpus should issue.

In this particular case, we would ask either that the Court decide as to the facts of the case or that be remanded to the Fourth Circuit, who had already indicated that it had some doubts in its mind about the applicable law without further guidance felt they had to apply to Thompson.

We’ve either ask that the Court apply to the facts of the case or remand it for the Fourth Circuit to apply.

Thank you.

William H. Rehnquist:

Mrs. Colville, let me ask you one question if I might?

I suppose one could apply your standard to a trial that took 20 days and had 80 witnesses and a transcript of many thousands of pages.

And is the procedure you contemplate that would just simply be submitted to the habeas judge for his perusal or referral by him to a magistrate if that was his inclination?

Carolyn J. Colville:

Well, my basic inclination is that the transcript would go to the federal district judge.

He would then have the benefit of the wisdom of the state court, plus the — any pleadings found on behalf of the state.

He could then look at those in order to swiftly review that particular transcript.

William H. Rehnquist:

How would you swiftly review several thousand pages?

Carolyn J. Colville:

Well I think what I’m saying is that it would be far more easier if the state says “This is where we say that there’s reasonable doubt.”

I think the court could then look at it to see if indeed this does create reasonable doubt.

I think it would be an easier process if they are being guided somewhat as to what the state says the reasonable doubt exists.

William H. Rehnquist:

Like a sufficiency of evidence argument on appeal, say the Supreme Court of Virginia?

Carolyn J. Colville:

Certainly.

William J. Brennan, Jr.:

Mrs. Colville, you just gave me an answer that I know but I’m just little confused.

Is the standard you proposed the same as the standard that’s applied in direct review in Virginia?

Carolyn J. Colville:

No, Your Honor, I could not find that reasonable doubt was the rule applied in Virginia, no.

William J. Brennan, Jr.:

So it’s somewhat narrower standard I would presume then?

Carolyn J. Colville:

Yes.

Thank you.

Warren E. Burger:

Thank you counsel.

The case is submitted.